In Climate Matters, What’s the Deference?

The recent Supreme Court decision in Gundy v US may portend a significant change in the way Congress drafts environmental legislation — indeed how it drafts all legislation — in the future. The case, brought by a convicted child rapist, challenges sex offender registration requirements. Looking past the lurid details of the case, the question before the Supreme Court (SCOTUS) involves the question of what constitutes a permissible delegation of power from Congress to the executive branch of government.

It is nearly impossible to conceive of any environmental law enacted in the past half-century or more that does not involve a Congressional grant of authority to the executive branch of government. Take, for example, Section 202(a)(1) of the Clean Air Act[i] (CAA) that provides:

The [EPA] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare … . (emphasis added)

The Supreme Court’s interpretation of this and other CAA provisions in the case of Massachusetts v US confirmed the authority of the Administrator of the US Environmental Protection Agency to regulate greenhouse gases (GHG) as qualified air pollutants under the Act. Moreover, the Massachusetts court determined that a finding of endangerment by the Agency obligated it to regulate GHG emissions.

The case, now considered settled law, led to the Agency’s 2009 finding that six greenhouse gases, including CO2, do harm the health and welfare of current and future generations. The determination, based largely on the research reports of the United Nation’s Intergovernmental Panel on Climate Change (IPCC), obligates the Trump administration — just as it did the Obama administration — to regulate GHG emissions flowing out of vehicle tailpipes and up power plant chimneys.

The separation of powers is a cornerstone of the Republic. Implied in the constitutional vestment of legislative authority is a prohibition against Congress off-loading any of its powers to the executive…